VU NGOC DAN v. HONG KONG SAR GOVERNMENT

HCAL 2303/2023

[2024] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2303 OF 2023

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J U D G M E N T

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A.  Application

1.  By an ex parte application filed on 20 December 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is a Vietnamese national who entered Hong Kong illegally on 1 November 2015. The Applicant was thereafter released on recognizance on 23 November 2015.

3.  On 7 December 2017, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

4.  On 10 January 2024, A Notice of Consideration of Deportation was served on the Applicant. A deportation order was made against the Applicant on 25 January 2024 (the “Deportation Order”).

5.  The Applicant claims that he has a wife in Hong Kong who is a non-refoulement claimant. The Applicant has no other local connection in Hong Kong.

6.  The Applicant was detained since 19 September 2023, after he was released from prison having served his last prison sentence. At the time of the hearing, the Applicant has been detained for 141 days.

C.  NRC related proceedings

7.  The Applicant first lodged his non-refoulement claim (the “NRC”) on 2 November 2015. The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 25 April 2017 by a notice of decision (the “Director’s Decision”). The Applicant’s application for late filing of the Notice of Appeal to the Torture Claims Appeal Board against the Director’s Decision was refused on 11 January 2019 (the “TCAB Decision”).

8.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision (the “JR Application”) was dismissed by the Form CALL-1 in HCAL 1029/2019 dated 3 August 2022.

9.  On 16 April 2023 and 3 October 2023, the Applicant indicated his intention to lodge a NRC. The Director informed the Applicant on 4 May 2023 and 20 October 2023 that as his NRC had been finally determined, no action would be taken.

10.  In any event, according to the updated removal policy of the ID since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

11.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

12.  On 27 November 2023, Lee & Associates Law Office (“LLO”) informed the Immigration Department that the Applicant had filed a summons to the Court of Appeal under CAMP 355/2023 and requested the release of the Applicant. On 28 November 2023, the Director replied to LLO that under prevailing policy/arrangement, the removal of unsubstantiated non-refoulement claimants will be proceeded upon the dismissal of his JR Application by the CFI, irrespective of whether the claimant has filed a notice of appeal to the higher courts.

D.  Criminal Record & Sentencing Record & Record of Abscondence

13.  Whilst the Applicant was released on recognizance, the Applicant had repeatedly been arrested and subsequently been convicted of the following criminal offences:

Date of Sentence	Offence	Sentence/Period of Imprisonment
22 March 2017	possession of forged identity card	12 months
8 August 2022	Taking employment while being a person in respect of whom a removal order is in force and resisting members of the Immigration Service	15 months and two weeks in total
6 October 2022	remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong	294 days (with 147 days running consecutively to his prior sentence)

E.  Steps towards Removal

14.  On 27 September 2023, a few days after the commencement of his detention, the Applicant had indicated his refusal to return to Vietnam.

15.  On 25 October 2023, the Applicant was informed of the re-entry seeking arrangement and agreed to attend an interview with the Vietnamese Interview Team (a team of officials from the Vietnamese Government responsible for the verification of an applicant’s identity and the approval of his return to Vietnam) (the “VIT”). The Applicant was interviewed by the VIT for identity verification on 31 October 2023 and approval for his return to Vietnam was granted by the VIT on 3 November 2023.

16.  On 17 November 2023, the Applicant indicated once again that he refused to return to Vietnam.

17.  On 15 December 2023, a Vietnamese passport with expiry date on 15 December 2024 was issued to the Applicant by the Consulate General of Vietnam in Hong Kong.

18.  A repatriation flight has been arranged and scheduled for 8 February 2024.

19.  It can thus be seen that the Immigration Department has all along taken a proactive stance in effecting the Applicant’s removal, and the major reason why the Applicant cannot be deported is his refusal to co-operate.

F.  Applicable Principles

20.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

21.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

22.  The Applicant has set out his grounds for application in his affirmation filed on 20 December 2023. In summary, they are as follows:

(1)  As a NRC claimant, he cannot be removed against his wishes.

(2)  He is remorseful for the crimes he had committed in the past.

(3)  He has suffered mentally from the long period of detention.

(4)  His wife has also come to Hong Kong and is alone by herself.

(5)  He can provide a surety who is a permanent Hong Kong resident.

23.  The Applicant has in addition made the following oral submissions at the hearing:

(1)  He did not want to leave Hong Kong and would die if he were to return to Vietnam. He wished to stay for 2 more years for his debts to be repaid before he is removed.

24.  I have borne these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

25.  The Removal Order and the Deportation order remain valid.

26.  From 19 September 2023 to 9 January 2024, the Applicant was detained under section 32(3A) of the Ordinance pending removal pursuant to the Removal Order.

27.  From 9 January 2024 to 22 January 2024, the Applicant was detained under section 29(1) of the Ordinance pending consideration of whether a deportation order should be made against him.

28.  From 23 January 2024 to 25 January 2024, the Applicant was detained under section 29(2) of the Ordinance pending consideration of whether a deportation order should be made against him.

29.  From 25 January 2024 to present, the Applicant was detained under section 32(3) pending removal under the Deportation Order.

30.  Thus, there was and remains clear prima facie lawful authority for the detention.

31.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

32.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

33.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

34.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

35.  The starting point is the length of the detention – about 141 days – against which all the other factors must be weighed and balanced.

36.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  Pursuant to the updated removal policy, after the Applicant’s JR Application was dismissed on 3 August 2022, there is no longer any legal impediment to the Applicant’s removal due to his NRC. It is irrelevant for the purposes of removal that there is any outstanding appeal.

(2)  This court has no jurisdiction to revisit the result of the JR Application, or otherwise grant the Applicant a right to remain in Hong Kong.

(3)  The Applicant had been un-cooperative with removal formalities since the commencement of his detention until late October 2023.

(4)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(5)  The period of detention that the Applicant has prolonged by his refusal to co-operate (the commencement of detention to late October 2023) will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful.

(6)  Despite the Applicant’s refusal to co-operate, a valid travel document has been issued to the Applicant with an expiry date on 15 December 2024.

(7)  A repatriation flight has been arranged and scheduled for 8 February 2024, 2 days after the hearing. The removal of the Applicant and the termination of the detention is thus imminent.

(8)  The risk of re-offending is substantial in view of the Applicant’s conviction record.

(9)  The Applicant had since the commencement of his detention indicated that he was unwilling to return to Vietnam. Although the Applicant has a local connection with his wife (also a NRC claimant) in Hong Kong, given the Applicant’s clear attitude that he is unwilling to be repatriated and there is no further legal impediment to his removal, the risk of absconding is high.

(10)  Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

37.  In view of the steps that had been taken by the Director as set out in paragraphs 15 – 18 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

38.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

39.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.